'GOOD SHOOT' GETS COMPLICATED

As a part of this report, Scott Stewart tells us exactly who is and who is not entitled to full diplomatic immunity under the Vienna Convention.

THE THREAT OF CIVIL UNREST IN PAKISTAN AND THE DAVIS CASE
By Scott Stewart

STRATFOR Global Intelligence
February 16, 2011

On Feb. 13, the Tehrik-i-Taliban Pakistan (TTP) issued a statement demanding that the government of Pakistan execute U.S. government contractor Raymond Davis or turn him over to the TTP for judgment. Davis, a contract security officer for the CIA, has been in Pakistani custody since a Jan. 27 incident in which he shot two men who reportedly pointed a pistol at him in an apparent robbery attempt.

Pakistani officials have corroborated Davis’ version of events and, according to their preliminary report, Davis appears to have acted in self-defense. From a tactical perspective, the incident appears to have been (in tactical security parlance) a “good shoot,” but the matter has been taken out of the tactical realm and has become mired in transnational politics and Pakistani public sentiment. Whether the shooting was justified or not, Davis has now become a pawn in a larger game being played out between the United States and Pakistan.

When one considers the way similar periods of tension between the Pakistanis and Americans have unfolded in the past, it is not unreasonable to conclude that as this current period plays out, it could have larger consequences for Davis and for American diplomatic facilities and commercial interests in Pakistan. Unless the Pakistani government is willing and able to defuse the situation, the case could indeed provoke violent protests against the United States, and U.S. citizens and businesses in Pakistan should be prepared for this backlash.

DETAILS OF THE CASE

One of the reasons that the Pakistanis have been able to retain Davis in custody is that while he may have been traveling on a “black” diplomatic U.S. passport, not everyone who holds a diplomatic passport is afforded full diplomatic immunity. The only people afforded full diplomatic immunity are those who are on a list of diplomats officially accredited as diplomatic agents by the receiving country. The rest of the foreign employees at an embassy or a consulate in the receiving country who are not on the diplomatic list and who are not accredited as diplomatic agents under the Vienna Convention are only protected by functional immunity. This means they are only protected from prosecution related to their official duties.

As a contract employee assigned to the U.S. Consulate in Lahore, Davis was likely not on the diplomatic list and probably did not enjoy full diplomatic immunity. He was probably considered a member of the administrative or technical staff. Protecting himself during a robbery attempt would not be considered part of his official function in the country, and therefore his actions that day would not be covered under functional immunity. So determining exactly what level of immunity Davis was provided will be critical in this case, and the information provided by the Pakistani Foreign Ministry will have a big impact on the Pakistani judge hearing the arguments.

In all likelihood, Davis was briefed regarding his legal status by his company and by the CIA prior to being assigned to post. He also would have been told that, while he had limited immunity, the U.S. government would do its best to take care of him if some incident occurred. However, it would have been made clear to him that in working as a protective contractor he was running a risk and that if there was an incident on or off duty, he could wind up in trouble. All security contractors working overseas know this and accept the risk as part of the job.

At the time of the shooting, of course, Davis would not have had time to leisurely ponder this potential legal quagmire. He saw a threat and reacted to it. Undoubtedly, the U.S. government will do all it can to help Davis out — especially since the case appears to be a good-shoot scenario and not a case of negligence or bad judgment. Indeed, on Feb. 15, U.S. Sen. John Kerry flew to Islamabad in a bid to seek Davis’ release. However, in spite of American efforts and international convention, Davis’ case is complicated greatly by the fact that he was working in Pakistan and by the current state of U.S.-Pakistani relations.

TENSIONS

Over the past few years, relations between the United States and Pakistan have been very strained. This tension has been evidenced not only by public opinion but also by concrete examples. For example, in mid-December, the CIA station chief in Islamabad was forced to leave the country after his name was disclosed in a class-action lawsuit brought by relatives of civilians killed by unmanned aerial vehicle strikes in the Pakistani tribal badlands.

It was no coincidence that the Pakistani lawsuit against the CIA station chief occurred shortly after the head of Pakistan’s Inter-Services Intelligence directorate, Lt. Gen. Ahmed Shuja Pasha, was accused in a civil lawsuit of being involved in the 2008 attacks in Mumbai. The suit was brought in U.S. District Court in Brooklyn by family members of the American rabbi killed alongside his wife in Mumbai by Pakistan-based Islamist militants.

Like Iraq, Pakistan is a country that has seen considerable controversy over American security contractors over the past several years. The government of Pakistan has gone after security contractor companies like DynCorp and its Pakistani affiliate InterRisk and Xe (formerly known as Blackwater), which has become the Pakistani version of the bogeyman. In addition to the clandestine security and intelligence work the company was conducting in Pakistan, in 2009 the Taliban even began to blame Xe for suicide bombing attacks that killed civilians. The end result is that American security contractors have become extremely unpopular in Pakistan. They are viewed not only as an affront to Pakistani sovereignty but also as trigger-happy killers.

And this is the environment in which the Davis shooting occurred. Even though some Pakistani civilians apparently came forward and reported that they had been robbed at gunpoint by the men Davis shot, other Pakistani groups like the Jamaat-ud-Dawah (JuD) — the successor to the Lashkar-e-Taiba, which was presumably banned by the Pakistani government — have demanded that Davis be hanged. The Jamaat-e-Islami (JeI), an Islamist political party, has also demanded that Davis be hanged and has called for large protests if he is released without a court order. As noted above, TTP spokesman Azam Tarik made a statement demanding that the Pakistani government either hang Davis or hand him over to them. Interest in this issue is not just confined to Islamist groups. There are some right-wing conservative nationalists and even some secular liberals who are asking: “If the United States can give CIA shooter Mir Amal Kansi the death penalty, why can’t Pakistan do the same thing to Davis?”

The result is that the Davis case has aroused much controversy and passion in Pakistan. This not only complicates the position of the Pakistani government but also raises the distinct possibility that there will be civil unrest if Davis is released.

FORECAST

Based on this history, the current tension between the United States and Pakistan, public sentiment in Pakistan regarding U.S. security contractors and the possibility of groups like JuD and JeI attempting to take advantage of the situation, there is a very real possibility that Davis’ release could spark mob violence in Pakistan (and specifically Lahore). Even if the Pakistani government does try to defuse the situation, there are other parties who will attempt to stir up violence.

Due to the widespread discontent over the issue of U.S. security contractors in Pakistan, if protests do follow the release of Davis, they can be expected to be similar to the protests that followed the Mohammed cartoon case, i.e., they will cut across ethnic and sectarian lines and present a widespread threat.